Last week the New Yorker published an exploration of what is known about the secretive, sinister David Addington, Dick Cheney's éminence grise in the Office of the Vice President. -- Addington's larger goal is the perfection of untrammelled imperial power for American presidents. -- The author of this 5,800-word piece, Jane Mayer, is an investigative New Yorker journalist who has written extensively about Dick Cheney, the bin Laden family, the U.S. policy of "extraordinary rendition," and Clarence Thomas; she also writes for the New York Review of Books. -- (NOTE: The U.S. Supreme Court decision in Hamdan v. Rumsfeld, handed down on Jun. 29, a few days after this article was published, was a defeat for Addington's perverted interpretation of the U.S. Constitution; the battle goes on. -- For 12 other pieces discussing Addington's subversive efforts to subvert American constitutional government, type "David S. Addington" into the UFPPC search function. -- It is regrettable that Jane Mayer refers to Addington's "New Paradigm," which amounts to a radical defense of presidential dictatorship, as "political conservatism.") ...
Letter from Washington
THE HIDDEN POWER
By Jane Mayer
** The legal mind behind the White Houses war on terror. **
July 3, 2006 (posted Jun. 26)
On December 18th, Colin Powell, the former Secretary of State, joined other prominent Washington figures at FedEx Field, the Redskins stadium, in a skybox belonging to the teams owner. During the game, between the Redskins and the Dallas Cowboys, Powell spoke of a recent report in the Times which revealed that President Bush, in his pursuit of terrorists, had secretly authorized the National Security Agency to eavesdrop on American citizens without first obtaining a warrant from the Foreign Intelligence Surveillance Court, as required by federal law. This requirement, which was instituted by Congress in 1978, after the Watergate scandal, was designed to protect civil liberties and curb abuses of executive power, such as Nixons secret monitoring of political opponents and the F.B.I.s eavesdropping on Martin Luther King, Jr. Nixon had claimed that as President he had the inherent authority to spy on people his Administration deemed enemies, such as the anti-Vietnam War activist Daniel Ellsberg. Both Nixon and the institution of the Presidency had paid a high price for this assumption. But, according to the Times, since 2002 the legal checks that Congress constructed to insure that no President would repeat Nixons actions had been secretly ignored.
According to someone who knows Powell, his comment about the article was terse. Its Addington, he said. He doesnt care about the Constitution. Powell was referring to David S. Addington, Vice-President Cheneys chief of staff and his longtime principal legal adviser. Powells office says that he does not recall making the statement. But his former top aide, Lawrence Wilkerson, confirms that he and Powell shared this opinion of Addington.
Most Americans, even those who follow politics closely, have probably never heard of Addington. But current and former Administration officials say that he has played a central role in shaping the Administrations legal strategy for the war on terror. Known as the New Paradigm, this strategy rests on a reading of the Constitution that few legal scholars share -- namely, that the President, as Commander-in-Chief, has the authority to disregard virtually all previously known legal boundaries, if national security demands it. Under this framework, statutes prohibiting torture, secret detention, and warrantless surveillance have been set aside. A former high-ranking Administration lawyer who worked extensively on national-security issues said that the Administrations legal positions were, to a remarkable degree, all Addington. Another lawyer, Richard L. Shiffrin, who until 2003 was the Pentagons deputy general counsel for intelligence, said that Addington was an unopposable force.
The overarching intent of the New Paradigm, which was put in place after the attacks of September 11th, was to allow the Pentagon to bring terrorists to justice as swiftly as possible. Criminal courts and military courts, with their exacting standards of evidence and emphasis on protecting defendants rights, were deemed too cumbersome. Instead, the President authorized a system of detention and interrogation that operated outside the international standards for the treatment of prisoners of war established by the 1949 Geneva Conventions. Terror suspects would be tried in a system of military commissions, in Guantánamo Bay, Cuba, devised by the executive branch. The Administration designated these suspects not as criminals or as prisoners of war but as illegal enemy combatants, whose treatment would be ultimately decided by the President. By emphasizing interrogation over due process, the government intended to preëmpt future attacks before they materialized. In November, 2001, Cheney said of the military commissions, We think it guarantees that well have the kind of treatment of these individuals that we believe they deserve.
Yet, almost five years later, this improvised military model, which Addington was instrumental in creating, has achieved very limited results. Not a single terror suspect has been tried before a military commission. Only ten of the more than seven hundred men who have been imprisoned at Guantánamo have been formally charged with any wrongdoing. Earlier this month, three detainees committed suicide in the camp. Germany and Denmark, along with the European Union and the United Nations Commission on Human Rights, have called for the prison to be closed, accusing the United States of violating internationally accepted standards for humane treatment and due process. The New Paradigm has also come under serious challenge from the judicial branch. Two years ago, in Rasul v. Bush, the Supreme Court ruled against the Administrations contention that the Guantánamo prisoners were beyond the reach of the U.S. court system and could not challenge their detention. And this week the Court is expected to deliver a decision in Hamdan v. Rumsfeld, a case that questions the legality of the military commissions.
For years, Addington has carried a copy of the U.S. Constitution in his pocket; taped onto the back are photocopies of extra statutes that detail the legal procedures for Presidential succession in times of national emergency. Many constitutional experts, however, question his interpretation of the document, especially his views on Presidential power. Scott Horton, a professor at Columbia Law School, and the head of the New York Bar Associations International Law committee, said that Addington and a small group of Administration lawyers who share his views had attempted to overturn two centuries of jurisprudence defining the limits of the executive branch. Theyve made war a matter of dictatorial power. The historian Arthur Schlesinger, Jr., who defined Nixon as the extreme example of Presidential overreaching in his book The Imperial Presidency (1973), said he believes that Bush is more grandiose than Nixon. As for the Administrations legal defense of torture, which Addington played a central role in formulating, Schlesinger said, No position taken has done more damage to the American reputation in the world -- ever.
Bruce Fein, a Republican legal activist, who voted for Bush in both Presidential elections, and who served as associate deputy attorney general in the Reagan Justice Department, said that Addington and other Presidential legal advisers had staked out powers that are a universe beyond any other Administration. This President has made claims that are really quite alarming. Hes said that there are no restraints on his ability, as he sees it, to collect intelligence, to open mail, to commit torture, and to use electronic surveillance. If you used the Presidents reasoning, you could shut down Congress for leaking too much. His war powers allow him to declare anyone an illegal combatant. All the worlds a battlefield -- according to this view, he could kill someone in Lafayette Park if he wants! Its got the sense of Louis XIV: I am the State. Richard A. Epstein, a prominent libertarian law professor at the University of Chicago, said, The President doesnt have the power of a king, or even that of state governors. Hes subject to the laws of Congress! The Administrations lawyers are nuts on this issue. He warned of an impending constitutional crisis, because their talk of the inherent power of the Presidency seems to be saying that the courts cant stop them, and neither can Congress.
The former high-ranking lawyer for the Administration, who worked closely with Addington, and who shares his political conservatism, said that, in the aftermath of September 11th, Addington was more like Cheneys agent than like a lawyer. A lawyer sometimes says no. He noted, Addington never said, There is a line you cant cross. Although the lawyer supported the President, he felt that his Administration had been led astray. George W. Bush has been damaged by incredibly bad legal advice, he said.
Addington has been a hawk on national defense since he was a teen-ager. Leonard Napolitano, an engineer who was one of Addingtons close childhood friends, and whose political leanings are more like those of his sister, Janet Napolitano, the Democratic governor of Arizona, joked, I dont think that in high school David was a believer in the divine right of kings. But, he said, Addington was always conservative.
The Addingtons were a traditional Catholic military family. They moved frequently; Davids father, Jerry, an electrical engineer in the Army, was assigned to a variety of posts, including Saudi Arabia and Washington, D.C., where he worked with the Joint Chiefs of Staff. As a teen-ager, Addington told a friend that he hoped to live in Washington himself when he grew up. Jerry Addington, a 1940 graduate of West Point who won a Bronze Star during the Second World War, also served in Korea and at the North American Air Defense Command, in Colorado; he reached the rank of brigadier general before he retired, in 1970, when David was thirteen. David attended public high school in Albuquerque, New Mexico, and his father began a second career, teaching middle-school math. His mother, Eleanore, was a housewife; the family lived in a ranch house in a middle-class subdivision. She still lives there; Jerry died in 1994. We are an extremely close family, one of Addingtons three older sisters, Linda, recalled recently. Discipline was very important for us, and faith was very important. It was about being ethical -- the right thing to do whether anyone else does it or not. I see that in Dave. She was reluctant to say more. Dave is most deliberate about his privacy, she added.
Socially, Napolitano recalled, he and Addington were the brains, or nerds. Addington stood out for wearing black socks with shorts. He and his friends were not particularly athletic, and they liked to play poker all night on weekends, stopping early in the morning for breakfast. Their circle included some girls, until the boys found them too distracting to our interest in cards, Napolitano recalled.
When he and Addington were in high school, Napolitano said, the Vietnam War was in its final stages, and there was a certain amount of Challenge authority and alcohol and drugs, but they werent issues in our group. Addingtons high-school history teacher, Irwin Hoffman, whom Napolitano recalled as wonderful, exacting, and a flaming liberal, said that Addington felt strongly that America should have stayed and won the Vietnam War, despite the fact that we were losing. Hoffman, who is retired, added, The boy seemed terribly, terribly bright. He wrote well, and he was very verbal, not at all reluctant to express his opinions. He was pleasant and quite handsome. He also had a very strong sarcastic streak. He was scornful of anyone who said anything that was naïve, or less than bright. His sneers were almost palpable.
Addington graduated in 1974, the year that Nixon resigned. In the aftermath of Watergate, liberal Democratic reformers imposed tighter restraints on the President and reined in the C.I.A., whose excesses were critiqued in congressional hearings, led by Senator Frank Church and Representative Otis Pike, that exposed details of assassination plots, coup attempts, mind-control experiments, and domestic spying. Congress passed a series of measures aimed at reinvigorating the system of checks and balances, including an expanded Freedom of Information Act and the Foreign Intelligence Surveillance Act, the law requiring judicial review before foreign suspects inside the country could be wiretapped. It also created the House and Senate Intelligence Committees, which oversee all covert C.I.A. activities.
After high school, Addington pursued an ambition that he had had for years: to join the military. Rather than attending West Point, as his father had, he enrolled in the U.S. Naval Academy, in Annapolis. But he dropped out before the end of his freshman year. He went home and, according to Napolitano, worked in a Long John Silvers restaurant. The academy wasnt academically challenging enough for him, Napolitano said.
Addington went to Georgetown University, graduating summa cum laude, in 1978, from the school of foreign service; he went on to earn honors at Duke Law School. After graduating, in 1981, he married Linda Werling, a graduate student in pharmacology. The marriage ended in divorce. His current wife, Cynthia, takes care of their three girls full-time.
Soon after leaving Duke, Addington started his first job, in the general counsels office at the C.I.A. A former top agency lawyer who later worked with Addington said that Addington strongly opposed the reform movements that followed Vietnam and Watergate. Addington was too young to be fully affected by the Vietnam War, the lawyer said. He was shaped by the postwar, post-Watergate years instead. He thought the Presidency was too weakened. Hes a believer that in foreign policy the executive is meant to be quite powerful.
These views were shared by Dick Cheney, who served as chief of staff in the Ford Administration. On a range of executive-power issues, Cheney thought that Presidents from Nixon onward yielded too quickly, Michael J. Malbin, a political scientist who has advised Cheney on the issue of executive power, said. Kenneth Adelman, who was a high-ranking Pentagon official under Ford, said that the fall of Saigon, in 1975, was very painful for Dick. He believed that Vietnam could have been saved -- maybe -- if Congress hadnt cut off funding. He was against that kind of interference.
Jane Harman, the ranking Democrat on the House Intelligence Committee, who has spent considerable time working with Cheney and Addington in recent years, believes that they are still fighting Watergate. Theyre focussed on restoring the Nixon Presidency, she said. Theyve persuaded themselves that, following Nixon, things went all wrong. She said that in meetings Addington is always courtly and pleasant. But when it comes to accommodating Congress his answer is always no.
In a revealing interview that Cheney gave last December to reporters travelling with him to Oman, he explained, I do have the view that over the years there had been an erosion of Presidential power and authority. . . . A lot of the things around Watergate and Vietnam both, in the seventies, served to erode the authority I think the President needs. Further, Cheney explained, it was his express aim to restore the balance of power. The President needed to be able to act as Alexander Hamilton had described it in the Federalist Papers, with secrecy and despatch -- especially, Cheney said, in the day and age we live in . . . with the threats we face. He added, I believe in a strong, robust executive authority, and I think the world we live in demands it.
At the C.I.A., where Addington spent two years, he focussed on curtailing the ability of Congress to interfere in intelligence gathering. He was a rookie, plenty bright, Frederick Hitz, another C.I.A. lawyer, who later became Inspector General, recalled. After the Church and Pike hearings, legislators came up with hundreds of pages of oversight recommendations, he said. Addington was very pro-agency. He was trying to figure out how to comply with government oversight without getting hog-tied. Addington viewed the public airings of the C.I.A.s covert activities as an absolute disaster, Berry recalled. We both felt that Congress did great harm by flinging open the doors to operational secrets.
When Addington joined the C.I.A., it was directed by William J. Casey, who also regarded congressional constraints on the agency as impediments to be circumvented. His sentiment about congressional overseers was best captured during a hearing about covert actions in Central America, when he responded to tough questioning by muttering the word assholes. After Reagans election in 1980, the executive branch was dominated by conservative Republicans, while the House was governed by liberal Democrats. The two parties fought intensely over Central America; the Reagan Administration was determined to overthrow the leftist Sandinista government in Nicaragua. Using their constitutional authority over appropriations, the Democrats in Congress forbade the C.I.A. to spend federal funds to support the Contras, a rightist rebel group. But Caseys attitude, as Berry recalled it, was Were gonna fund these freedom fighters whether Congress wants us to or not. Berry, then the staff director for the Republicans on the House Intelligence Committee, asked Casey for help in fighting the Democrats. Soon afterward, Addington joined Berry on Capitol Hill.
When the Iran-Contra scandal broke, in 1986, it exposed White House arms deals and foreign fund-raising designed to help the anti-Sandinista forces in Nicaragua. Members of Congress were furious. Summoned to Capitol Hill, Casey lied, denying that funds for the Contras had been solicited from any foreign governments, although he knew that the Saudis, among others, had agreed to give millions of dollars to the Contras, at the request of the White House. Even within the Reagan Administration, the foreign funding was controversial. Secretary of State George Shultz had warned Reagan that he might be committing an impeachable offense. But, under Caseys guidance, the White House went ahead with the plan; Shultz, having expressed misgivings, was not told. It was a bureaucratic tactic that Addington reprised after September 11th, when Powell was left out of key deliberations about the treatment of detainees. Lawrence Wilkerson, Powells aide, said that he was aware of Addingtons general strategy: We had heard that, behind our backs, he was saying that Powell was soft, but easy to get around.
The Iran-Contra scandal substantially weakened Reagans popularity and, eventually, seven people were convicted of seventeen felonies. Cheney, who was then a Republican congressman from Wyoming, worried that the scandal would further undercut Presidential authority. In late 1986, he became the ranking Republican on a House select committee that was investigating the scandal, and he commissioned a report on Reagans support of the Contras. Addington, who had become an expert in intelligence law, contributed legal research. The scholarly-sounding but politically outlandish Minority Report, released in 1987, argued that Congress -- not the President -- had overstepped its authority, by encroaching on the Presidents foreign-policy powers. The President, the report said, had been driven by a legitimate frustration with abuses of power and irresolution by the legislative branch. The Minority Report sanctioned the Presidents actions to a surprising degree, considering the number of criminal charges that resulted from the scandal. The report also defended the legality of ignoring congressional intelligence oversight, arguing that the President has the Constitutional and statutory authority to withhold notifying Congress of covert actions under rare conditions. And it condemned legislative hostage taking, noting that Congress must realize . . . that the power of the purse does not make it supreme in matters of war. In his December interview with reporters, Cheney proudly cited this document. If you want reference to an obscure text, go look at the minority views that were filed in the Iran-Contra committee, the Iran-Contra report, in about 1987, he said. Part of the argument was whether the President had the authority to do what was done in the Reagan years.
Addington and Cheney became a formidable team, but it was soon clear that Addington would not join Cheney as a politician. Adelman recalled Addingtons personality as dour, adding that, unlike with Dick, I never saw much of a sense of humor. Cheney can be witty and funny. David is sober. I didnt see him at social events much. But, he added, Dick wasnt looking for friends at work. He was looking for performance. And David delivers. Hes efficient and dedicated. Hes a doer. He went on, Cheneys not a lawyer, so he would defer to David on the law.
In 1989, President George H. W. Bush appointed Cheney Secretary of Defense. Cheney hired Addington first as his special assistant and, later, as the Pentagons general counsel. At the Pentagon, Addington became widely known as Cheneys gatekeeper -- a stickler for process who controlled the flow of documents to his boss. Using a red felt-tipped pen, he covered his colleagues memos with comments before returning them for rewrites. His editing invariably made arguments sharper, smarter, and more firm in their defense of Cheneys executive powers, a former military official who worked with him said.
At the Pentagon, Addington took a particular interest in the covert actions of the Special Forces. A former colleague recalled that, after attending a demonstration by Special Forces officers, he mocked the C.I.A., which was constrained by oversight laws. This is how real covert operations are done, he said. (After September 11th, the Pentagon greatly expanded its covert intelligence operations; these programs have less congressional oversight than those of the C.I.A.) Cheney, throughout his tenure as Defense Secretary, shared with Addington a pessimistic view of the Soviet Union. Both remained skeptical of Gorbachev long after the State Department, the national-security adviser, and the C.I.A. had concluded that he was a reformer. They were always, like, Whoa -- beware the Bear! Wilkerson recalled. They immersed themselves in continuity of government exercises -- studying with unusual intensity how the government might survive a nuclear attack. According to Rise of the Vulcans, a history of the period by James Mann, Cheney, more than once, spent the night in an underground bunker.
A decade later, when hijacked planes slammed into the Twin Towers and the Pentagon, Addington, perhaps more than anyone else in the U.S. government, was ready to act. During the Clinton Presidency, he had worked as a lawyer for various business interests, such as the American Trucking Associations, and in 1994 he had led an exploratory Presidential campaign for Cheney, who decided against running. Once Cheney became Vice-President, Addington helped oversee the transition, setting up the most powerful Vice-Presidency in Americas history. Addingtons high-school friend Leonard Napolitano said Addington told him that he and Cheney were merging the Vice-Presidents office with the Presidents into a single Executive Office, instead of having two different camps. Napolitano added, David said that Cheney saw the Vice-President as the executive and implementer of the President. Addington created a system to insure that virtually all important documents relating to national-security matters were seen by the Vice-Presidents office. The former high-ranking Administration lawyer said that Addington regularly attended White House legal meetings with the C.I.A. and the National Security Agency. He received copies of all National Security Council documents, including internal memos from the staff. And, as a former top official in the Defense Department, he exerted influence over the legal office at the Pentagon, helping his protégé William J. Haynes secure the position of general counsel. A former national-security lawyer, speaking of the Pentagons legal office, said, Its obvious that Addington runs the whole operation.
Meanwhile, Addington has fought tirelessly to stem reform of other controversial aspects of the New Paradigm, such as the detention and interrogation of terror suspects. Last year, he and Cheney led an unsuccessful campaign to defeat an amendment, proposed by Senator John McCain, to ban the abusive treatment of detainees held by the military or the C.I.A. Government officials who have worked closely with Addington say he insists that legal flexibility is necessary, because of the iniquity of the enemy; moreover, he does not believe that the legal positions taken by the Bush Administration in the war on terror have damaged the countrys international reputation. Hes a very smart guy, but he gives no credibility to those who say these policies are hurting us around the world, the senior Administration legal adviser said. His feeling is that there are no costs. Hell say people are just whining. He thinks most of them would be against us no matter what. In Addingtons view, critics of the Administrations aggressive legal policies are just political enemies of the President.
Yet, from the start, some of the sharpest critics of detainee-treatment policies have been military and law-enforcement officials inside the Bush Administration; people close to it, like McCain; and our foreign allies. Just a few months after the Guantánamo detention centers were established, members of the Administration began receiving reports that questioned whether all the prisoners there were really, as Secretary of Defense Donald Rumsfeld had labelled them, the worst of the worst. Guter said that the Pentagon had originally planned to screen the suspects individually on the battlefields in Afghanistan; such Article 5 hearings are a provision of the Geneva Conventions. But the White House cancelled the hearings, which had been standard protocol during the previous fifty years, including in the first Gulf War. In a January 25, 2002, legal memorandum, Administration lawyers dismissed the Geneva Conventions as obsolete, quaint, and irrelevant to the war on terror. The memo was signed by Gonzales, but the Administration lawyer said he believed that Addington and Flanigan were behind it. The memo argued that all Taliban and Al Qaeda detainees were illegal enemy combatants, which eliminated any argument regarding the need for case-by-case determination of P.O.W. status. Critics claim that the lack of a careful screening process led some innocent detainees to be imprisoned. Article 5 hearings would have cost them nothing, the Administration lawyer, who was involved in the process, said. They just wanted to make a point on executive power -- that the President can designate them all enemy combatants if he wants to.
Guter, the Navy JAG, said that, before long, he and other military experts began to wonder whether the reason they werent getting much useful intelligence from Guantánamo was that, as he puts it, it wasnt there. Guter, who was in the Pentagon on September 11th, said, I dont have a sympathetic bone in my body for the terrorists. But I just wanted to make sure we were getting the right people -- the real terrorists. And I wanted to make sure we were doing it in a way consistent with our values.
While the JAGs questions about the treatment of detainees went largely unheeded, he said, the C.I.A. was simultaneously raising similar concerns. In the summer of 2002, the agency had sent an Arabic-speaking analyst to Guantánamo to find out why more intelligence wasnt being collected, and, after interviewing several dozen prisoners, he had come back with bad news: more than half the detainees, he believed, didnt belong there. He wrote a devastating classified report, which reached General John Gordon, the deputy national-security adviser for combatting terrorism. In a series of meetings at the White House, Gordon, Bellinger, and other officials warned Addington and Gonzales that potentially innocent people had been locked up in Guantánamo and would be indefinitely. This is a violation of basic notions of American fairness, Gordon and Bellinger argued. Isnt that what were about as a country? Addingtons response, sources familiar with the meetings said, was These are enemy combatants. Please use that term. Theyve all been through a screening process. We dont have anything to talk about.
A former Administration official said of Addingtons response, It seemed illogical. How could you deny the possibility that one or more people were locked up who shouldnt be? There were old people, sick people -- why do we want to keep them? At the meeting, Gordon and Bellinger argued, The American public understands that wars are confusing and exceptional things happen. But the American public will expect some due process.
Addington and Gonzales dismissed this concern. The former Administration official recalled that Addington was the dominant voice. It was a non-debate, in his view. The confrontation made clear, though, that Addington had been informed early that there were problems at Guantánamo. There wasnt a lack of knowledge or understanding, the former official said.
Addington has proved deft at outmaneuvering his critics. Documents embarrassing to Addingtons opponents have been leaked to the press, if not necessarily by him. A top-secret N.S.C. memo describing Powells request to reconsider the suspension of the Geneva Conventions appeared in the Washington Times the day after it was circulated to the Secretary of Defense, the Attorney General, and the Vice-President; the article cited unnamed sources who accused Powell of bowing to pressure from the political left. The Administration lawyer said, The way Addington works, he controls the flow of information very tightly. Addington chastised a Justice Department official who showed a legal opinion on the treatment of detainees to the State Department. He repeatedly directed Gonzales, the White House counsel, to keep Bellinger, the N.S.C. lawyer, out of meetings about national-security issues. Lip-lock is the word Addingtons old Pentagon colleague Sean OKeefe, now the chancellor of Louisiana State University, used to describe his discretion. Hes like Cheney, OKeefe said. You cant get anything out of him with a crowbar. The Administration lawyer said, Hes a bully, pure and simple. Several talented top lawyers who challenged Addington on important legal matters concerning the war on terror, including Patrick Philbin, James Comey, and Jack Goldsmith, left the Administration under stressful circumstances. Other reform-minded government lawyers who clashed with Addington, including Bellinger and Matthew Waxman, both of whom were at the N.S.C. during Bushs first term, have moved to the State Department.
Waxman, a young lawyer who headed the Pentagons office of detainee affairs, departed soon after he had a major confrontation with Addington over the issue of clarifying military rules for the treatment of prisoners. Waxman believed that international standards for the humane treatment of detainees should be followed, and argued for reforms in the Army Field Manual. He hoped to reinstate the basic standards that are specified in the Geneva Conventions. This meant the prohibition of torture, overt acts of violence, and outrages on personal dignity, in particular humiliating and degrading treatment. Although the Vice-Presidents office is not part of the military chain of command, last September Addington summoned Waxman to his office and berated him. Waxman declined to comment on the incident, but a former colleague in the Pentagon, in whom Waxman confided, said that Addington accused Waxman of wanting to fight the war on terror his own way, rather than the Presidents way. The Army Field Manual still hasnt been revised, and, according to those involved, Addington and his protégé Haynes remain the major obstacles.
Last fall, Richard Shiffrin, the Pentagon lawyer who was left out of the Administrations initial discussions of the military commissions, learned from the Times about the Administrations decision to sanction warrantless domestic electronic surveillance by the National Security Agency. This was remarkable, because Shiffrin was the Pentagon lawyer in charge of supervising the N.S.A.s legal advisers. It was exceptional that I didnt know about it -- extraordinary, Shiffrin said. In the prior Administration, on anything involving N.S.A. legal issues Id have been made aware. And I should have been in this one.
Shortly after September 11th, Addington and Cheney, without alerting Shiffrin, held meetings with top N.S.A. lawyers in the Vice-Presidents office and told them that the President, as Commander-in-Chief, had the authority to override the FISA statutes and not seek warrants from the special court. According to the Times, Addington and Cheney pushed the N.S.A. to engage in practices that the agency thought were illegal, such as the warrantless wiretapping of American suspects making domestic calls. General Michael Hayden, the former head of the N.S.A., who was recently confirmed as director of the C.I.A., has denied being pressured. Shiffrin, however, doubted that the N.S.A. lawyers were expert enough in Article II of the Constitution, which defines the Presidents powers, to argue back. He described the Administrations legal arguments on wiretapping as close calls.
Others are more critical. Fourteen prominent constitutional scholars, representing a range of political views, recently wrote an open letter to Congress, claiming that the N.S.A. surveillance program appears on its face to violate existing law. The scholars noted that Bush had made no effort to amend the FISA law to suit national-security needs -- he simply ignored it. The Republican legal activist Bruce Fein said, What makes this so sinister is that the members of this Administration have unchecked power. They dont care if the wiretapping is legal or not. But the former high-ranking Administration lawyer suggested that the situation is more serious than an intentional infraction of the law. Its not that they think theyre skirting the law, he said. They think that this is the law.
Fein suggested that the only way Congress will be able to reassert its power is by cutting off funds to the executive branch for programs that it thinks are illegal. But this approach has been tried, and here, too, Addington has had the last word. John Murtha, the ranking Democrat on the House Appropriations Subcommittee on Defense, put a provision in the Pentagons appropriations bills for 2005 and 2006 forbidding the use of federal funds for any intelligence-gathering that violates the Fourth Amendment, which protects the privacy of American citizens. The White House, however, took exception to Congresss effort to cut off funds. When President Bush signed the appropriations bills into law, he appended signing statements asserting that the Commander-in-Chief had the right to collect intelligence in any way he deemed necessary. The signing statement for the 2005 budget, for instance, noted that the executive branch would construe the spending limit only in a manner consistent with the Presidents constitutional authority as Commander-in-Chief, including for the conduct of intelligence operations.
According to the Boston Globe, Addington has been the leading architect of these signing statements, which have been added to more than seven hundred and fifty laws. He reportedly scrutinizes every bill before President Bush signs it, searching for any language that might impinge on Presidential power. These wars of words are yet another battlefront between Addington and Congress, and some constitutional scholars find them troubling. Few of the signing statements were noticed until one of them was slipped into Bushs signing of the McCain amendment. The language was legal boilerplate, reserving the right to construe the legislation only as it was consistent with the Constitution. But, considering that Cheneys office had waged, and lost, a public fight to defeat the McCain amendment democratically -- the vote in the Senate was 909 -- the signing statement seemed sneaky and subversive.
Earlier this month, the American Bar Association voted to investigate whether President Bush had exceeded his constitutional authority by reserving the right to ignore portions of laws that he has signed. Richard Epstein, the University of Chicago law professor, said, Whats frightening to me is that this Administration is always willing to push the conventions to the limits -- and beyond. With his signing statements, I think the President just goes too far. If you sign these things with a caveat, do the inferior officers follow the law or the caveat?
Bruce Fein argues that Addingtons signing statements are unconstitutional as a strategy, because the Founding Fathers wanted Presidents to veto legislation openly if they thought the bills were unconstitutional. Bush has not vetoed a single bill since taking office. Its part of the balancing process, Fein said. Its about accountability. If you veto something, everyone knows where you stand. But this President wants to do it sotto voce. He wants to give the image that hes accommodating on torture, and then reserves the right to torture anyway.
David Addington is a satisfactory lawyer, Fein said, but a less than satisfactory student of American history, which, for a public servant of his influence, matters more. If you read the Federalist Papers, you can see how rich in history they are, he said. The Founders really understood the history of what people did with power, going back to Greek and Roman and Biblical times. Our political heritage is to be skeptical of executive power, because, in particular, there was skepticism of King George III. But Cheney and Addington are not students of history. If they were, theyd know that the Founding Fathers would be shocked by what theyve done.